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CONSTITUTIONALITY: RELIEF OF RESTITUTION OF CONJUGAL

RIGHTS-

During the time of introducing the provision for restitution of conjugal rights in the Special
Marriage Act, 1954 and the Hindu Marriage Act, 1955, there were heated debates in the
Parliament for and against it. It is significant to note that in 1983-1984, the constitutional
validity of section 9 of Hindu marriage act 1955 became a subject matter of debate as a result
of these case laws-

 The constitutional validity of the provision for restitution of conjugal challenged

before the Andhra Pradesh High Court in Sareetha v. T. Venkatasubbaiah, AIR 1983
AP 356. In this case sareetha claimed that section 9 of the Act is liable to be struck
down as violative of the fundamental rights in part III of the Constitution of India,
specifically Article 14 and 21.Justice Choudary held that section 9 is a savage and
barbarous remedy, violating the right to privacy and human dignity guaranteed by
Article 21 of the Constitution. It denies the women her free choice whether, when and
how her body is to become the vehicle for the procreation of another human being.
The woman loses her control over her most intimate decisions. Clearly therefore, the
right to privacy guaranteed by Article 21 is flagrantly violated by a decree of
restitution of conjugal right. As a result the section 9 of Hindu marriage act 1955 was
unconstitutional.

 In fact, Justice Rotagi in Harvinder Kaur v Harminder Singh, AIR 1984 Delhi 66,
recognised that “the legislature has created restitution of conjugal rights as an
additional ground for divorce”.
 In Shakila Banu v. Gulam Mustafa, AIR 1971 Bom 166, 1970, the Hon’ble High
Court observed: “The concept of restitution of conjugal rights is a relic of ancient
times when slavery or quasi-slavery was regarded as natural. This is particularly so
after the Constitution of India came into force, which guarantees personal liberties
and equality of status and opportunity to men and women alike and further confers
powers on the State to make special provisions for their protection and safeguard.”
 Ultimately Supreme Court in Saroj Rani v. Sudharshan, 1984 AIR 1562, gave a
judgment which was in line with the Delhi High Court views and upheld the
constitutional validity of the Section 9 of the Hindu Marriage Act, 1955 and over-
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ruled the decision given in Sareetha v. T. Venkatasubbaiah . here the some Para of
the Saroj rani case judgment-

The court observed that the object of the section is to bring about cohabitation between
estranged parties so that they can live together. That in the privacy of home and married life
neither article 21 nor article 14 has any place.

 APPLICATION OF THE PROVISION IN DIFFERENT

COMMUNITIES -

The restitution of conjugal rights is one of the reliefs that are provided to the spouses in
distress in the institution of marriage by law. Decree of restitution of conjugal rights could be
passed in case of valid marriages only. Apart from legislation relating to matrimonial law,
courts in India in case of all communities have passed decrees for restitution of conjugal
rights.

 Hindu

Section 9 of the Hindu Marriage Act, 1955 provides for the restitution of the conjugal rights.
The aggrieved party may apply, by petition to the District Court, for the restitution of
conjugal rights. One of the important implications of Section 9 of the Hindu Marriage Act,
1955 is that it provides an opportunity to an aggrieved party to apply for maintenance under
Section 25 of the Hindu Marriage Act, 1955. The legal grounds for refusing to grant relief
are:

 For instance, any ground on which the respondent could have asked for a decree for
judicial separation or for nullity of marriage or for divorce;
 Reasonable excuse for withdrawing from the society of the petitioner;
 Any conduct on the part of the petitioner or fact tantamount to the petitioner taking
advantage of his or her own wrong or any disability for the purpose of such relief;
 Unnecessary or improper delay in instituting the proceeding.
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Restitution of Conjugal Rights -

In common parlance, restitution of conjugal rights means ‘restoration of
marital rights to its original position’. The concept of Restitution of Conjugal Rights is a legal
remedy that cannot be found in the Dharmashastra or any personal law. The remedy finds its
origin in Jewish law, which was brought into India by way of Common Law in the British
Raj. The application of the concept dates back to the year 1886[2] by Privy Council in India.
Marriage implies that husband and wife will cohabit. Both husband and wife are entitled to
live together, but if after marriage has been performed, one partner withdraws from the
society of the other party, without a reasonable cause. The other party has a legal right to
approach the court by way of a petition for restitution of conjugal rights. Passing of the
decree for restitution shall depend upon whether there is no legal ground for refusing the
petition and the court is satisfied that the statements averred by the aggrieved party are true.
Actions of an aggrieved party can be a reasonable cause for withdrawal Provision under
Hindu Marriage Act, 1955
Section 9  of the Hindu Marriage Act, 1955 provides for restitution of conjugal rights as
follows:
Either of the party withdraws from the society of the other person,
Such withdrawal was without reasonable cause, aggrieved party, by way of petition to the
district court, may apply for restitution of conjugal rights,
The court may a decree restitution of conjugal rights if there is no legal ground for refusal of
the petition and the court is satisfied that the statement made by petitioner are true.

From, the essential conditions of the above section, it can be inferred that withdrawal from
society is a voluntary refusal to cohabit and the reasonable cause shall be any ground that
makes cohabitation impossible. If the husband continually persists wife to live with his
parents, this is a reasonable cause for the wife to withdraw from the society of husband.

What is matrimonial home?

The definition of a matrimonial home or matrimonial society is not defined in any statute.
Black Law Dictionary defines a matrimonial home as a house where husband and wife live
together. The definition implies the existence of a household shared by husband and wife.
Withdrawal from such society or home would be required for validating the condition under
section 9.
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Effect of decree of restitution -

If a petition is filed by the aggrieved party with the desire to resuming cohabitation and a
decree is passed by the court for the same, non – compliance of such decree (non –
resumption of cohabitation) for a period of one year, becomes a ground to obtain a divorce
for the aggrieved partner.

Possible grounds for withdrawal from society –

1. Bigamy

When a husband marries a second wife, while the first marriage still being valid, he commits
the offence of bigamy. Hindu Marriage act prohibits bigamy and if such an act is committed
by the husband, then it would become a justified ground for the wife to withdraw herself
from husband’s society. In these cases, the wife has the right to apply for restitution of
conjugal rights.

2. Females staying away for work

Normally, after marriage gets solemnized, the wife leaves her parental home to start living in
the marital home (husband’s house). The traditional approach in relation to marriage is
husband going out for job and the wife staying back for household chores and caretaking of
the husband’s family. As a result, in the earlier times, wife was not allowed to withdraw from
her husband’s society without his valid consent. Such a lack of freedom inhibited the wives to
work outside to have a career. Although, several changes have taken place in such a
relationship, due to which nowadays most of the women carry on with their jobs and careers
after marriage.

This concept raises the question, whether a wife can choose to live separately due to her
employment? In the context of this question, the courts have had a conservative and
progressive view. In the cases of Tirath Kaur v. Kirpal Singh[7] and Gaya Prasad v.
Bhagwati, the court had a conservative approach where it was held that employment is not a
sufficient excuse for a wife to live separately and wife has an obligation of cohabitation, a
duty to submit herself to his authority. Wife is not entitled to live separately until she proves
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any misconduct or lack of maintenance from her husband. Whereas, in the case of Shanti
Nigam v. Ramesh Chandra Nigam, the court held that if the wife desires to work, she cannot
be kept in household, even if such work demands for staying away, she must be able to do so.
Where it is felt by wife that such work would be necessary for her own upkeep, so long as she
does not cut herself from her husband, husband cannot apply for such a remedy. A similar
view was taken by the court in the case of Swaraj Garg v. K.M. Garg, AIR 1978 Delhi 296
where it was held that there is a provision in Hindu law that warrants the choice of
matrimonial as a privilege, exclusive to the husband.

Constitutional Validity of Section 9, Hindu Marriage Act, 1955 -

The remedy of restitution of conjugal rights was adopted in India in the 19th century from
British common law. This was the time when wives were considered as a property of their
husbands. The same remedy was abolished in the UK in the year 1947 by an enactment[10].
Since then, the remedy of restitution of constitutional rights has been challenged several
times.

In the case of T. Sareetha v. T.V. Subbaiah, AIR 1983 AP 356, the court opined that section
9 is in violation of Article 21 of the Constitution. Section 9 was held to be unconstitutional,
being the grossest form of violation.

In the case of Harvinder Kaur v. Harmander Singh, AIR 1984 Delhi 66 the wife had
challenged the decree granted to husband by the lower court, the court held that section 9 was
constitutionally valid, and the appeal was dismissed. Basically, the latter case was of opposite
opinion on the issue of the constitutionality of section 9.

After both the above-stated cases were decided, the Supreme Court in the case of Saroj Rani
v. Sudarshan Kumar, 1984 AIR 1562 where a wife had applied for restitution after being
turned out from the house, it was held that section 9 is constitutional. In addition to this, the
court further stated that the purpose of this section is to offer to induce husband and wife to
live together and settle their disputes in a friendly manner.